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ELCPartially AllowedNot stated in judgment (application dated 14th February 2024)· [2024] KEELC 5441 (KLR)

Kanga v Abdullahi (Environment & Land Case E013 of 2024) [2024] KEELC 5441 (KLR)

Environment and Land Court
24 July 2024
NMN. A. Matheka
1,544 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Mombasa court protected a registered landowner from ongoing construction, but only by freezing the situation rather than granting a full injunction.

What this practically means

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Executive summary

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This was an interlocutory application dated 14th February 2024, brought under Sections 13 and 19 of the Environmental and Land Act, Sections 1A, 1B, 3 and 3A of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules, in which the Plaintiff, Judith Karungi Mbandi, sought temporary injunctions restraining the Defendant, her agents, workers and relatives from trespassing on and constructing on Plot No. Mainland North/Section 1/11756, Utange, Mombasa, pending inter partes hearing of the application and determination of the suit. The Plaintiff relied on a search certificate evidencing her registration, a surveyor's report dated 30th October 2023 recording an ongoing high-rise construction on the plot, and photographs. The Respondent opposed via a replying affidavit, asserting registration of the neighbouring plot 11755/11/MN jointly with Eman Jama Mohammed, acquired in 2021 from Richard Kiboi Kimunya after due diligence, with development already at seven floors, and pointing to what the deed plan suggested was a boundary issue between the adjoining plots. Applying the Giella v Cassman Brown principles as restated in Nguruman Limited v Jan Bonde Nielsen, the court found the Plaintiff had established a prima facie case through her title documents; that inability to access and use the suit property demonstrated irreparable injury; and that the balance of convenience favoured granting protection, there being a lower risk of injustice in doing so at the interlocutory stage. The court ordered that the status quo be maintained pending the hearing and determination of the suit, with costs of the application in the cause. Delivered at Mombasa on 24th July 2024 by N.A. Matheka J.

Key legal issues

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01

Whether the Plaintiff established a prima facie case

Holding

Yes - title documents, search certificate and a surveyor's report showing ongoing construction established a prima facie case.

Reasoning

The Plaintiff attached documents of title including a search certificate showing ownership of Plot No. 11756/11/MN, plus a surveyor's report dated 30th October 2023 confirming an ongoing high-rise construction on the plot. On this material the court concluded the legal right of the registered owner had apparently been infringed, satisfying the Mrao test.

p. 2
02

Whether irreparable injury would be occasioned

Holding

Yes - inability to access and use the suit property sufficed.

Reasoning

The Plaintiff deponed to trespass and construction of illegal structures by the Defendant without colour of right, and attached photographs of a high-rise building under construction. The court found the denial of access and use of registered land could not be adequately compensated in damages.

p. 3
03

Whether the balance of convenience favoured the Plaintiff

Holding

Yes - the lower risk of injustice lay in granting protection at the interlocutory stage, given the Respondent's competing ownership claim and boundary issue.

Reasoning

The Respondent claimed to be registered owner of the neighbouring plot 11755/11/MN acquired in 2021 from Richard Kiboi Kimunya, with development at 7 floors, and suggested a boundary issue on the deed plan. The court, not having heard the matter on its merits, found the lower risk lay in maintaining the status quo.

p. 4

Legal principles established

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  • The conditions for a temporary injunction (prima facie case, irreparable injury, balance of convenience) are sequential hurdles that must each be surmounted.
  • Where doubt exists as to rights at the interlocutory stage, the court should opt for the lower rather than the higher risk of injustice.

Court orders

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  1. 1.That the status quo be maintained pending the hearing and determination of the suit
  2. 2.Costs of the application to be in the cause

Authorities

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Legislation

  • Environmental and Land ActSections 13 and 19
  • Civil Procedure ActSections 1A, 1B, 3 and 3A
  • Civil Procedure RulesOrder 51 Rule 1

Cases cited (6)

  • Giella vs Cassman Brown
    (1973) EA 358
  • Nguruman Limited versus Jan Bonde Nielsen & 2 others
    CA No.77 of 2012 (2014) eKLR
  • Mrao Ltd vs First American Bank of Kenya Ltd
    (2003) eKLR
  • Pius Kipchirchir Kogo vs Frank Kimeli Tenai
    (2018) eKLR
  • Paul Gitonga Wanjau vs Gathuthis Tea Factor Company Ltd & 2 others
    (2016) eKLR
  • Amir Suleiman vs Amboseli Resort Limited
    (2004) eKLR
Jurisdiction invoked
Sections 13 and 19 of the Environmental and Land Act; Sections 1A, 1B, 3 and 3A of the Civil Procedure Act; Order 51 Rule 1 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kanga v Abdullahi (Environment & Land Case E013 of 2024) [2024] KEELC 5441 (KLR)", Case Analysis (2024). Not stated in judgment (application dated 14th February 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5441/eng@2024-07-24

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.